Making of a German Constitution : a Slow Revolution

172 • The Making of a German Constitutionthe separation of the sexes wherever possible in the workplace. Paragraph 120called for separation ‘on the shop floor, in cafeterias, courtyards, and washrooms’,for example. 26 Indeed as the century wore on, Social Darwinism also came to theaid of liberal demands for sex guardianship. The infusion of Social Darwinism intoGerman legal thought was present in Jhering’s Der Kampf ums Recht (1872), whichreacted against the dominance of the historical school. 27 This element came throughclearly in Geyer’s summary article, ‘Der Kampf ums Recht’ (1873), which appearedin Der Gerichts saal. 28 Although new arguments rested on an alternative scientificfoundation, the demand for female exclusion remained consistent with thesystems developed by Grimm and others.Despite the infusion of Social Darwinism into legal thought, on the whole, thewritings of the Germanists remained the dominant source of political discourse.When later generations of Germanist scholars encountered the unfortunate contradictionof existing conditions, they routinely invoked immemorial customary lawto support their views. One of the most important legal histories of early twentiethcentury was Rudolf Hübner’s Grundzüge des deutschen Privatrechts (1908). Heopened his discussion on civil marriage by freely recognizing and listing a numberof secondary sources that acknowledged the fact that the forms of marital unions wererecognized as legal in an earlier period. However, he drew distinction between aunion and marriage, asserting the legitimacy of the heterosexual model. ‘Althoughdifferent varieties of sexual union were once not only actually practiced but also recognizedby law’, he wrote, ‘nevertheless marriage, as that form of sexual community,which involved the most far-reaching legal consequences, was always distinguishedby a special form observed in its creation, on the strength of which it, alone, wasconceded its privilege of full legitimacy’. 29Hübner’s Grundzüge goes on to summarize the consensus of nineteenth-centuryscholarly opinion on the history of eheliches Güterrecht. It is worth examining herefor several reasons. First, Germanists acknowledged that the long-term evolution ofmarital property relations had resulted in changes that were favorable to women. Maritalproperty relations had advanced well beyond the administrative community (Verwaltungsgemeinschaft).Second, Hübner offered a description of the five basic systems ofmarital property relations that were identified by the Germanists and that will be usefulwhen I examine the state reports later in this chapter. Finally, Hübner’s work serves anadditional purpose as a primary source. He acknowledged that this progressive trendwas reversed with the reintroduction of the Verwaltungsgemeinschaft—the system ofmarital property relations, which was preferred by liberal Germanists and which theyidentified as the customary law of the ancient Germans.By 1908 when Hübner wrote, the BGB had been the law of the land for eightyears. It is taken up before our discussion of the BGB, however, to show how historywas used to justify innovations that liberals knew were regressive at the time theywere introduced. More than anything else, Hübner’s Grundzüge summarized the